JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.

SYLLABUS BY THE COURT

1. Where the issue on
appeal from the circuit court is clearly a question of law or involving an interpretation
of a statute, we apply a denovo standard of review. Syl.
Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

3. 'A statute may contain
constitutional and unconstitutional provisions which may be perfectly distinct
and separable so that some may stand and others will fall; and if, when the
unconstitutional portion of the statute is rejected, the remaining portion reflects
the legislative will, is complete in itself, is capable of being executed independently
of the rejected portion, and in all other respects is valid, such remaining
portion will be upheld and sustained.' Point 6, syllabus, State v. Heston,
137 W.Va. 375 [71 S.E.2d 481]. Syl. Pt. 4, State ex rel. State Building
Comm'n v. Bailey, 151 W.Va. 79, 150 S.E.2d 449 (1966).

4. The statutory language
of West Virginia Code § 11-10-10(d) (1986) (Repl.Vol.1999) , which permits
an administrative body to have ultimate discretionary authority on the critical issue of a bond or a substitute therefor, required
to perfect an appeal of that administrative body's decision to a circuit court,
violates the open courts provision set forth in article III, section 17 of the
West Virginia Constitution.

5. A taxpayer who chooses
to proceed under the statutory alternative for an appeal bond under West Virginia
Code § 11-10-10(d) (1986) (Repl.Vol.1999) , and who otherwise complies
with the statutory requirements for requesting a waiver of the appeal bond requirement,
is entitled to apply to the circuit court for a review of any adverse determination
concerning bond waiver.

Albright, Justice:

Appellant Gary W. Frantz,
d/b/a Frantz Lumber Company, Tri-State Logging, and Tri-State Logging, Inc.
(hereinafter Taxpayer), challenges the July 26, 1999, order of the
Circuit Court of Kanawha County dismissing his appeal from an administrative
ruling of Appellee Joseph M. Palmer, the State Tax Commissioner (hereinafter
Tax Commissioner). As grounds for the appeal, Taxpayer challenges
the constitutionality of West Virginia Code § 11-10-10(d) (1986) (Repl.Vol.1999)
insofar as that statutory provision reposes sole discretion in the Tax Commissioner
with regard to issuance of a certification of adequate assets sufficient to
secure performance in lieu of the appeal bond otherwise required by the statute.
Upon careful examination of the statutory provisions, we find that West Virginia
Code § 11-10-10(d) violates our constitutional guarantee of open access
to the courtsSee footnote 1 1 by omitting any provision for judicial review of the Tax Commissioner's
discretion concerning the issuance of a certificate of adequate assets. Accordingly,
we reverse and remand for further proceedings consistent with this opinion.

I. Factual and Procedural Background

In 1990, the Tax Commissioner
assessed Taxpayer, a Maryland resident who is in the timber business, for certain
unpaid business and occupation,See footnote
2 2 severance, and franchise taxes covering the period of 1986
through 1989. The amount of the assessment was $17,362.23 with additions of $4,338,78
and interest of $2,636.83 for a total amount owing of $24,337.84. Taxpayer timely
filed a petition seeking a reassessment of the taxes and an administrative hearing
was held on August 20, 1991. The ruling relative to this administrative proceeding
was issued on August 26, 1998--more than seven years after the hearing.See
footnote 3 3 In issuing its ruling, the Tax Commissioner affirmed
the tax liabilities assessed but waived in full all the additions to the tax including
the interest figure.

On October 22, 1998, Taxpayer
timely filed an appeal from the Tax Commissioner's decision in accordance with
the provisions of West Virginia Code § 11-10- 10.See
footnote 4 4 As part of the provisions governing the appeal,
Taxpayer was required within ninety days of the filing of the petition to file
a cash or corporate surety bond or, alternatively, to seek a certificate from the Tax Commissioner dispensing with such bonds based
on sufficient proof of assets. See W.Va. Code § 11-10-10(d). While
Taxpayer undertook efforts to obtain a corporate surety bond,See
footnote 5 5 the surety company contacted was unwilling to issue
a bond based on the fact that Taxpayer's business records for the relevant time
period had been destroyed due to the flooding of his Maryland residence in 1995.

Following the passage of the
ninety-day period for filing the appeal bond, the Tax Commissioner filed a motion
to dismissSee footnote 6 6
the appeal, citing lack of jurisdiction for Taxpayer's failure to obtain the
requisite appeal bond.See footnote 7 7 On April 15, 1999, Taxpayer filed a motion for leave to proceed without
bond or alternatively, with a reduced bond. As exhibits to this motion, Taxpayer
filed an affidavit setting forth in detail his unsuccessful efforts regarding
securing a surety bond, as well as a financial statement offered to demonstrate
the availability of personal assets sufficient to cover the amount of the tax assessment. The circuit court, upon its consideration of the various filings
of the parties, ruled that Taxpayer's failure to file an appeal bond within
the statutory requirements of West Virginia Code § 11-10-10(d) prevented
it from hearing the appeal on jurisdictional grounds. Seeking to obtain an appeal
on the merits of his case , Taxpayer asks this Court to reverse the lower court's
ruling.

II. Standard of Review

Our review of this matter is
de novo consistent with our holding in syllabus point one of Chrystal
R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995), that [w]here
the issue on appeal from the circuit court is clearly a question of law or involving
an interpretation of a statute, we apply a denovo standard of
review. Plenary review is required in this case as issues of statutory
interpretation as well as the constitutionality of West Virginia Code §
11-10-10(d) are presented.

III. Discussion

A. Undue Delay

While we find it unnecessary
to resolve this case on grounds of delay, we wish to comment nonetheless on
the lengthy period of time that ensued between the administrative hearing and
the issuance of the Tax Commissioner's ruling. More than seven years transpired
between the August 1991 administrative hearing and the Tax Commissioner's ruling in late August 1998. Tax decisions are governed by the requirement
set forth in West Virginia Code § 11-10-9 (1978) (Repl.Vol.1999) that the
tax commissioner's decision shall be provided in writing within
a reasonable time after the administrative hearing takes place. Id.
Rather than offering any explanation for the protracted delay that occurred
in this case,See footnote 8 8 the Tax Commissioner chose instead to criticize Taxpayer for failing to
initiate a writ of mandamus to prompt the issuance of a ruling. See, e.g.,
Syl. Pt. 2, in part, Kanawha Valley Trans. Co. v. Public Serv. Comm'n,
159 W.Va. 88, 219 S.E.2d 332 (1975) (If a decision is unduly delayed,
a proceeding in mandamus may be instituted to compel a decision . . . .).

Among the list of guarantees
set forth in article III, section 17 of our state constitution is the laudatory
mandate that justice shall be administered without . . . delay.
W.Va. Const. art. III, § 17. Just as circuit court judges have an
affirmative duty to render timely decisions on matters properly submitted within
a reasonable time following their submission, Syl. Pt. 1, in part, State
ex rel. Patterson v. Aldredge, 173 W.Va. 446, 317 S.E.2d 805 (1984), the
obligation to act in a timely fashion is similarly imposed upon administrative
bodies, as we recognized in syllabus point seven of Allen v. State Human
Rights Commission, 174 W.Va. 139, 324 S.E.2d 99 (1984): [A]dministrative
agencies performing quasi-judicial functions have an affirmative duty to dispose promptly
of matters properly submitted.

When a litigant asserts constitutional
violations predicated on decisional delay, the inquiry becomes one of whether
the litigant can establish that his ability to prepare or defend his case has
been substantially prejudiced as a result of the delay. See Allen, 174
W.Va. at 157 n. 22, 324 S.E.2d at 117 n. 22 (discussing correlation between
administrative promptness and procedural due process); (New York State NOW
v. Cuomo, 14 F.Supp.2d 424, 431 (S.D. N.Y. 1998) (holding that administrative
delay may rise to level of constitutional violation if substantive constitutional
rights are violated), order vacated on other grounds, 261 F.3d 156 (2nd
Cir. 2001); O'Keefe v. Murphy, 345 N.E.2d 292, 294 (N.Y. 1976) ([W]henever
a delay in an administrative adjudication significantly or deliberately interferes
with a party's capacity to prepare or to present his case, the right to due
process has been violated); see generally 2 Am.Jur.2d Admin.
Law § 379 (1994). Taxpayer asserts that, due to the decisional delay,
his ability to defend his position with regard to challenging the tax assessment
has been prejudiced by the staleness of the evidence and the intervening flood-related
destruction of his business records. Rather than addressing the effects of the
delay on Taxpayer's appeal,See footnote
9 9 the Tax Commissioner observes only that Taxpayer has benefitted from the delay because he enjoyed the benefits of an interest-free
loan of money otherwise owed.See footnote
10 10

Time limitations,
as we recognized in Allen,  are frequently imposed by the Legislature
in recognition of the need for expeditiousness. 174 W.Va. at 158, 324
S.E.2d at 119. In this case, the within a "reasonable
time" period prescribed by the Legislature
for the issuance of tax decisions was clearly exceeded by the Tax Commissioner.
We would be hard pressed to find the existence of good cause with regard to
the seven-year delay between the administrative hearing and the issuance of
the decision at issue here. We admonish the Tax Commissioner to comply with
the legislatively-selected time period for the issuance of tax decisions. See
W.Va. Code § 11-10-9. Despite the availability of extraordinary relief
as a means of seeking the issuance of delayed decisions, taxpayers should not
have to resort to the judicial system to obtain a timely tax ruling.

B. Constitutional Defects

To determine whether West Virginia
Code § 11-10-10(d) violates the West Virginia Constitution, we examine
the pertinent statutory provisions which require as follows:

within ninety days after the petition
for appeal is filed, or sooner if ordered by the circuit court, the taxpayer shall
file with the clerk of the circuit court a cash bond or a corporate surety bond
approved by the clerk. The surety must be qualified to do business in this state.
These bonds shall be conditioned that the taxpayer shall perform the orders of
the court. The penalty of this bond shall be not less than the total amount of
tax, additions to tax, penalties and interest for which the taxpayer was found
liable in the administrative decision of the tax commissioner. Notwithstanding
the aforegoing and in lieu of such bond, the tax commissioner, in his discretion
upon such terms as he may prescribe, may upon a sufficient showing by the taxpayer,
certify to the clerk of the circuit court that the assets of the taxpayer subject
to the lien imposed by section twelve of this article, or other indemnification,
are adequate to secure performance of the orders of the court.

W.Va. Code § 11-10-10(d) (emphasis supplied). Taxpayer's challenge to this
constitutional language arises from the legislative decision to grant the Tax
Commissioner sole dispositional authority to dispense with the bond requirement.
With this unfettered grant of discretionary power, Taxpayer maintains that the
Legislature has violated our state constitution's guarantee of open access to
the courts. W.Va. Const. art. III, §17.

Taxpayer asserts that to repose
unchecked power in the administrative body that is a party to the tax appeal
necessarily works an injustice in those instances where the Tax Commissioner's
discretion is employed to deny a taxpayer access to the judicial system. Furthermore,
Taxpayer suggests that the circuit court, not the Tax Commissioner, should be
vested with ultimate authority to modify or waive the bond required for an appeal
under West Virginia Code § 11-10-10(d). We agree. An adverse party should not hold
the keys to the courthouse.

In the criminal context we
have recognized that [o]nce a person is convicted of a misdemeanor and
sentenced to jail, he must then post an appeal bond which, if cynically manipulated,
can defeat his appeal. Champ v. McGee, 165 W.Va. 567, 570, 270
S.E.2d 445, 447 (1980). We believe that the case before us implicates the principle
recognized in Champ . When one party may--by the unchecked exercise of
discretion-- prevent the right to judicial review belonging to an opposing party,
as West Virginia Code § 11-10-10(d) currently allows, then the right of
open access to the courts guaranteed by article III, section 17 of the West
Virginia Constitution has been contravened.

Other courts, in reviewing
their respective tax statutes, have similarly determined that statutory provisions
which deny a taxpayer's access to judicial review are unconstitutional. See,
R Commun., Inc. v. Sharp, 875 S.W.2d 314 (Tex. 1994) (finding statutory
enactment removing remedy of prepayment declaratory relief from tax assessment
to be unconstitutional denial of open courts mandate of Texas constitution);
Jensen v. State Tax Comm'n, 835 P.2d 965, 968-69 (Utah 1992) (holding
that violation of Utah open courts provision results where taxpayer is unable
to deposit full amount of taxes, interest, and penalties as required by statute
as condition to appeal of tax assessment).

Accordingly, we hold that the
statutory language of West Virginia Code § 11- 10-10(d), which permits an
administrative body to have ultimate discretionary authority on the critical issue
of a bond or a substitute therefor,See
footnote 11 11 required to perfect an appeal of that administrative
body's decision to a circuit court, violates the open courts provision set forth
in article III, section 17 of the West Virginia Constitution. That ultimate discretionary
authority must be vested in the courts. Determining the sufficiency of an appeal
bond or its alternatives is a judicial function and not an executive function.

Turning now to fashioning
the limited relief required in this case, we heed the following axiom of statutory
construction: Acts of the Legislature are always presumed to be constitutional,
and this Court will interpret legislation in any reasonable way which will sustain
its constitutionality. State ex rel. City of Charleston v. Coghill,
156 W.Va. 877, 883, 207 S.E.2d 113, 118 (1973). Equally applicable is our recognition
that

[a]
statute may contain constitutional and unconstitutional provisions which may
be perfectly distinct and separable so that some may stand and others will fall;
and if, when the unconstitutional portion of the statute is rejected, the remaining
portion reflects the legislative will, is complete in itself, is capable of
being executed independently of the rejected portion, and in all other respects
is valid, such remaining portion will be upheld and sustained. Point 6,
syllabus, State v. Heston, 137 W.Va. 375 [71 S.E.2d 481].

Syl. Pt. 4, State ex rel. State Building Comm'n v. Bailey, 151 W.Va. 79,
150 S.E.2d 449 (1966). Cognizant of our obligation to respect the legislative
will and to uphold all constitutionally valid legislative provisions, we proceed
to determine, to the greatest extent possible, the statutory provisions that may
be sustained, and to identify, as narrowly as possible, the specific language
that fails constitutional muster. See Syl. Pt. 1, in part, State ex
rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965)
(In considering the constitutionality of a legislative enactment, courts
must exercise due restraint, in recognition of the principle of the separation
of powers in government among the judicial, legislative and executive branches.).

We perceive no problem with
the provisions of West Virginia Code §11-10- 10(d) which permit the Tax
Commissioner to examine whatever evidence the taxpayer presents regarding his
sufficiency of assets to cover the amount of the tax assessment. Similarly we
perceive no problems with authorizing the Tax Commissioner to certify that a
taxpayer's assets are deemed sufficient to permit an appeal to proceed without
a bond or with some other arrangements in lieu of bond, so as to permit the
parties to proceed to the appeal by agreement on the issue of a bond or other
security.

The language in West Virginia
Code § 11-10-10(d) which is troublesome to this Court is the statutory
clause permitting the Tax Commissioner in his discretion upon such terms as he may prescribe
to grant or withhold approval
of a Taxpayer's request to substitute taxpayer's property or other indemnification
for the required appeal bond, as a condition of Taxpayer prosecuting an appeal
of the Tax Commissioner's levy of taxes, penalties and interest.See
footnote 12 12 W.Va. Code § 11-10-10(d) (emphasis supplied).
Based on our conclusion that the courts, not the Tax Commissioner, must be vested
with the ultimate discretionary authority to fix the terms upon which an appeal
bond may be waived or other property or indemnification substituted for the
bond, this broad grant of discretion to the Tax Commissioner--and the Tax Commissioner
alone_does not survive constitutional scrutiny.

Consistent with the position
of the Tax Commissioner and the court below, we acknowledge that this Court
has generally viewed compliance with statutorily-imposed deadlines for the posting
of bonds to prosecute an action or perfect an appeal as jurisdictional in nature.
See Stevens v. Saunders, 159 W.Va. 179, 220 S.E.2d 887 (1975) (affirming
dismissal on statute of limitations grounds where cost bond not obtained until
after period of repose had run), superseded by statute as stated in Crawford
v. Hatcher, 804 F.Supp. 834 (S.D. W.Va. 1992); Gaines v. Hawkins,
153 W.Va. 471, 170 S.E.2d 676 (1969) (applying statutory period for obtaining
bond in connection with civil appeals); Scott Coal & Coke Ry. Co., 70 W.Va. 777, 74 S.E. 992 (1912) (interpreting statutory provision
regarding applicable period for perfecting civil appeals). None of those cases
cited by the court below in support of its ruling, however, involve application
of the statutory provision at issue in this case or raise the issue central
to this case of a constitutional challenge to the statutory language vesting
in an opposing party--a state administrative body--the final power to approve,
modify, or excuse compliance with a bond requirement. In cases where statutory
time periods for initiating litigation were relied upon to dismiss causes of
action and the appellate courts subsequently determined that tolling statutes
applicable to minors were unconstitutional, those cases were remanded despite
the statute of limitations problem. See, e.g. Whitlow v. Board of
Educ., 190 W.Va. 223, 438 S.E.2d 15 (1993) (remanding case dismissed on
statute of limitation grounds after determining that tolling statute was unconstitutional);
accord Strahler v. St. Luke's Hosp., 706 S.W.2d 7 (Mo. 1986); Sax
v. Votteler, 648 S.W.2d 661 (Tex. 1983). For analogous reasons, our conclusion
regarding the unconstitutionality of certain language found in West Virginia
Code § 11-10-10(d) requires that Taxpayer and others affected by this language
have a meaningful opportunity to pursue their appeals through the posting of
bond or providing substitute property or indemnification in a manner consistent
with the principles set forth in this opinion.

Accordingly, pending legislative
attention to the defect we have found in West Virginia Code § 11-10-10(d),
reposing sole discretional authority in the Tax Commissioner regarding bond waiver, we hold that a taxpayer who chooses to proceed under
the statutory alternative for an appeal bond provided under West Virginia Code
§ 11-10-10(d), and who otherwise complies with the statutory requirements
for requesting a waiver of the appeal bond requirement, is entitled to apply
to the circuit court for a review of any adverse determination concerning bond
waiver. In considering such an application, the lower court should consider
evidence of Taxpayer's ability to pay the tax assessment and other relevant
factors that the Tax Commissioner or Taxpayer wish to address with regard to
the issue of adequate assets or other substitute indemnification If the circuit
court makes a determination that the Tax Commissioner has unreasonably refused
to issue a certificate regarding the taxpayer's adequacy of assets or other
proposed substitute indemnification, the circuit court has authority to set
the terms of the appeal. While the ninety-day period prescribed by statute for
obtaining an appeal bond or the statutory alternative remains enforceable, where
a litigant who properly sought a waiver from the Tax Commissioner within the
ninety-day statutory period seeks judicial review of the Tax Commissioner's
decision within that ninety-day period, the lower court has jurisdiction to
address the issue, and, in due course to hear a resulting appeal.

In undertaking to fashion
relief for the Taxpayer aggrieved by the lack of a remedy at law due to the
constitutional deficiency, we note the failure of Taxpayer to apply to the Tax
Commissioner for a waiver of the appeal bond requirement within the ninety-day period after the appeal was filed.See
footnote 13 13See W.Va. Code § 11-10-10(d). We
note that while Taxpayer did undertake efforts within that time period to obtain
a bond, his difficulty in obtaining a bond was attributable at least indirectly,
if not directly, to the dilatory efforts of the Tax Commissioner to issue the
ruling appealed from. Based on our determination that ultimate discretionary
authority concerning the appeal bond or its substitute cannot rest with the
administrative body who is a party to the appeal, we find it necessary to allow
Taxpayer a reasonable opportunity to perfect his appeal. Accordingly, we are
remanding this matter to the circuit court with the following directions. Within
the ninety-day period next following the issuance of the mandate herein, Taxpayer
shall: (1) post the required bond or propose to Tax Commissioner what property
or other indemnification Taxpayer proposes to substitute for such bond, or,
(2) failing such agreement, apply to the circuit court below for a judicial
determination of what property or other indemnification may lawfully be substituted
if Taxpayer and Tax Commissioner do not promptly reach an agreement well before
the expiration of such ninety-day period. If it is necessary for the circuit
court to fix the terms for substituted property or other indemnification, the
lower court's order should be made as soon after the Taxpayer's application
to the circuit court or the expiration of such ninety-day period as practicable.
The lower court should consider evidence of Taxpayer's ability to pay the tax
assessment and other relevant factors that the Tax Commissioner or Taxpayer wish to adduce with regard to the issue of adequate assets or other
substitute indemnification. Any agreement between Taxpayer and the Tax Commissioner
should be filed with the Circuit Court within the ninety-day period, and preferably
well before. Upon either agreement between Taxpayer and the Tax Commissioner
or an order of the circuit court in lieu thereof, Taxpayer must either comply
within ten days of the filing of the agreement or entry of the circuit court's
order or his appeal shall be dismissed.

Accordingly, we hereby reverse
the decision of the Circuit Court of Kanawha County and remand this matter for
further proceedings consistent with the directives contained in this opinion.

Footnote: 3 3In
explanation, the Tax Commissioner suggested that Taxpayer's request to submit
documentation in support of his position following the administrative hearing
may have contributed to the delayed ruling.

Footnote: 4 4Appeals
taken from administrative tax decisions are required to be filed within sixty
days of service of the ruling upon the taxpayer. See W.Va. Code § 11-10-10(a).

Footnote: 5 5According
to the affidavit of Gary W. Frantz, he contacted BGS&G Company who in turn
contacted Travelers Casualty and Surety Company with reference to obtaining
a surety bond.

Footnote: 6 6According
to the certificate of service, the Tax Commissioner served the motion to dismiss
on Taxpayer on March 30, 1999. The motion, however, was not entered into the
Kanawha County Circuit Court's file until July 26, 1999--the same date the circuit
court's ruling was entered.

Footnote: 7 7In
its response to the petition for appeal filed on December 21, 1998, the Tax
Commissioner raised as an affirmative defense the resulting lack of jurisdiction
in the event Taxpayer failed to timely file an appeal bond as required by West
Virginia Code § 11-10- 10(d).

Footnote: 8 8See
supra note 3.

Footnote: 9 9Because
this appeal is predicated on issues of the lower court's jurisdiction, we do
not address the merits of those prejudices Taxpayer asserts with regard to the
issue of delay.

Footnote: 10 10The
administrative decision provided that no interest accrued for the period covering
approximately six months after the hearing to the August 26, 1998, date of the
Tax Commissioner's ruling.

Footnote: 11 11
We are unaware of any other statute that reposes in any other administrative
body similar discretion with regard to the requirement of an appeal bond.

Footnote: 12 12We
seek here to preserve and promote the separation of powers among the three branches
of our state government, by limiting our action as narrowly as possible to the
necessities created by the constitutional deficiency identified in West Virginia
Code § 11-10- 10(d). See W.Va. Const. art. V, §1.

Footnote: 13 13Taxpayer
concluded that applying to the Tax Commissioner for relief from the bond requirement
would likely be futile.